TMI Blog2021 (3) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... e power given under the Civil Procedure Code where the words are an error apparent on the face of the records . It was pointed out that the power of Tribunals under Section 129B(2) of the Act to rectify any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an error apparent on the face of the record . Further, it was pointed out that mistake is an ordinary word, but in taxation laws, it has a specific and special significance, that it is not an arithmetical or clerical error alone that comes within its purview and that it comprehends errors which,after a judicious probe into the record from which it is supposed to emanate, are discerned. It was also held that in order to attract the power to rectify under Section 129B(2) of the Act, it is not sufficient if there is merely a mistake in the order sought to be rectified; and the mistake to be rectified must be one apparent from the record. Certain materials were placed when the Tribunal was hearing the matter for the first time and therefore, the Tribunal opined that adequate opportunity was not granted to the assessee and thought fit to remand t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the issue is highly technical matter and that just reading over the expert opinion at the time of personal hearing could not be taken to be giving an effective opportunity to the petitioner to explain their stand in the facts and circumstances of the case. Therefore, the Tribunal held that the matter should be reconsidered by the Adjudicating Authority in de novo proceedings. Having concluded so in paragraph 7 of the order dated 11.3.2003, the Tribunal proceeded to render a finding that the product manufactured by the petitioner was not a computer software and that therefore, the petitioner could not claim the benefit of the relevant notification. 5. Being aggrieved by the observation made by the Tribunal dated 11.3.2003 in spite of remanding the matter for de novo consideration, the petitioner filed a miscellaneous petition before the Tribunal and requested the Tribunal to invoke the powers under Section 129B(2) of the Customs Act, 1962. This miscellaneous petition appears to have been dealt with by the Tribunal in a more elaborate fashion than dealing with the correctness of the order passed by the Adjudicating Authority. In our considered view, such an exercise i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake must exist and the same must be apparent from the record. The power to rectify the mistake however does not cover cases where a revision or review of the order is intended. Mistake means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. Apparent' means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under Section 129B(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in the provision makes it clear that only amendment to the order passed under Section 129B(1) is permissible where it is brought to the notice of the Tribunal that there is a mistake apparent from the record. In our view amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the petitioner intends to do in the present case is precisely the substitution of the order, which according to us is not permissible under the provisions of Section 129B(2) of the Act and therefore, the Tribunal was justified in holding that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. The plain meaning of the word apparent in fact is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It therefore follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. 11. The concept of mistake, which is capable of being rectified under Section 129B(2) of the Act has been explained to mean that it is not confined to clerical or arithmetical mistakes alone. At the same time, the mistake to be rectified must be one apparent from the record and it should not be a mistake, which can be discovered by long drawn reasoning. While analyzing the legal principle for exercise of power under Section 129B of the Act in the said decision, the Court also noted the power given under the Civil Procedure Code where the words are an error apparent on the face of the records . It was pointed out that the power of Tribunals under Section 129B(2) of the Act to rectify any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an error a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls were placed when the Tribunal was hearing the matter for the first time and therefore, the Tribunal opined that adequate opportunity was not granted to the assessee and thought fit to remand the matter for de novo consideration. Having arrived at such a conclusion, the Tribunal ought not to have ventured to give a finding on the very same issue, which the Tribunal though fit to remand to the Adjudicating Authority for a fresh consideration. Therefore, the Judicial Member, who agreed with the petitioner, rightly held that if the observations made in the other portion of the impugned order were not eschewed, it would be fatal to the case of the petitioner. Furthermore, the mistake is clearly visible from the records and it does not require any long drawn reasoning for a prudent man to come to a conclusion that there is a mistake. Hence, we are of the opinion that the Tribunal ought to have exercised its power under Section 129B(2) of the Act and deleted the conclusive observations made by the Tribunal on the issue, which it thought fit to remand for de novo consideration because the issue is an open issue. Had the Tribunal done so, it would not be a case of re-writing the order ..... 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